St. Louis-San Francisco R. Co. v. Byrnes

• Decision Date: 30 March 1928
• Docket Number: No. 7632.,7632.
• Citation: 24 F.2d 66
• Parties: ST. LOUIS-SAN FRANCISCO R. CO. v. BYRNES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

24 F.2d 66 (1928)

ST. LOUIS-SAN FRANCISCO R. CO. v. BYRNES et al.

No. 7632.

Circuit Court of Appeals, Eighth Circuit.

January 21, 1928.

Rehearing Denied with Modifications March 30, 1928.

Thomas W. White, of St. Louis, Mo. (S. W. Fordyce, Walter R. Mayne, and E. T. Miller, all of St. Louis, Mo., on the brief), for appellant.

J. M. Blayney, of St. Louis, Mo. (E. C. Eliot and William S. Bedal, both of St. Louis, Mo., on the brief), for appellees Current River Lumber Co. and Dwinnell.

Paul Bakewell, Jr., of St. Louis, Mo., for Byrnes.

Before KENYON and BOOTH, Circuit Judges, and MUNGER, District Judge.

KENYON, Circuit Judge.

This is an appeal from a decree of the United States District Court for the Eastern District of Missouri dismissing an intervening petition of St. Louis-San Francisco Railway Company (hereafter designated the Frisco Company) on the ground that the court had no jurisdiction to entertain the same. The main suit was an ordinary creditors' bill brought by the Lima Locomotive Works against Forked Leaf White Oak Lumber Company (hereafter designated the lumber company), which asked the appointment of a receiver of all the property of the lumber company. This company filed answer, admitting the allegations of the bill, and joined in the prayer for the appointment of a receiver to take possession of its entire property and business, also asking that the court make such decrees with respect thereto as were warranted by general equitable principles, and cause all liens upon its property to be ascertained, defined, and determined.

The court appointed one Butler as receiver, and authorized him to operate the mills, stores, logging roads, railroads, and other property of defendant. Subsequently, July 9, 1923, appellee J. W. Byrnes, was appointed receiver. April 8, 1924, the receiver asked instructions from the court concerning the disposition of certain assets, among which were the rails in question here. The Salem, Winona & Southern Railroad Company leased the right of way between Winona and West Eminence, Mo., from the lumber company. It was in fact a dummy corporation owned by the lumber company. These rails had been leased by the predecessor receiver from the Frisco Company.

The court, on April 8, 1924, directed the public sale of the assets, including the rails and metal materials leased from the Frisco Company. The order of sale contained the following:

"Whatever right, title, and interest the receiver may now have or may hereafter be adjudged to have had or to have been entitled to, in and to certain rails, angle bars, and other metal material, and forming the trackage from the junction of the Salem, Winona & Southern Railroad Company and the St. Louis-San Francisco Railway Company. * * *

"The purchasers will further buy with notice of a lease from the St. Louis-San Francisco Railway Company to the former receiver herein, covering the trackage between Winona and West Eminence, Mo.

"The purchasers at such public sale will take whatever right, title, and interest the receiver has in said property or whatever right, title, and interest he may be finally adjudged to have had in said properties, with the right in the purchasers to resist any and all claims or liens that might have been resisted by the receiver as such, so that, subject to the general rules of law and equity, the purchaser will stand in the shoes of the receiver herein, and succeed to the same title in and to the said properties against which liens are asserted that the receiver might have acquired by final adjudication thereof."

The sale was made to W. S. Dwinnell, and receiver's report thereof was filed June 9, 1924. A later report was made June 16, 1924. July 3, 1924, an order was made by the court confirming the sale of the assets of the lumber company by the receiver which order contained the following:

"The said instrument shall further convey whatever right, title, and interest the receiver may now have or may hereafter be adjudged to have had or to have been entitled to in and to the certain rails, angle bars, and other metal material forming the trackage from the junction of the Salem, Winona & Southern Railroad Company and the St. Louis-San Francisco Railway Company near Winona, Mo., and further recite that the purchaser buys with the notice of a lease from the St. Louis-San Francisco Railway Company to the former receiver herein, covering the trackage between Winona and West Eminence, Mo.

"The said instrument shall recite that the purchaser will take whatever right, title, and interest the receiver has in said property or whatever right, title, and interest he may finally be adjudged to have had in said properties, with the right in the purchaser to resist any and all claims or liens that might have been resisted by the receiver, as such, so that, subject to the general rules of law and equity, the purchaser will stand in the shoes of the receiver herein, and succeed to the same title in and to the said properties against which liens are asserted, that the receiver might have acquired by final adjudication thereof, all in accordance with the order of sale as entered herein on April 8, 1924."

September 24, 1925, being after the term at which the order confirming the sale was made, the Frisco Company filed an amended intervening petition setting out the lease made with the receiver, and alleging that there had been default thereunder, that the receivers had failed to pay the rent, and that petitioner had terminated said lease on the 8th day of January, 1923; that it was the duty of the said receivers under the lease to return the metal material described in the lease free on board the cars of petitioner at Winona, Mo.; that the receivers had failed so to do; that the purported sale did not confer any title or right of possession on the purchaser, Dwinnell, to said metal material; that said metal material remained the personal property of petitioner, although the possession was in the receivers; that demand had been made upon the receivers and upon Dwinnell demanding the return and delivery of the metal material free on board its tracks at Winona, Mo. The petitioner asked that the receiver be made a party defendant therein, and that Dwinnell and the Current River Lumber Company, which had purchased some interest in the property from him, be made parties defendant. Two subdivisions of said petition we set forth as follows:

"(7) That this court fully and carefully investigate into the matters and controversies hereinbefore stated as to the rights, equities, and priorities that your petitioner may have in said metal material, remove the cloud upon the title to same, enforce all legal and equitable liens and claims which your petitioner is entitled to in said material and order, and direct that said receiver Byrnes, said Dwinnell, and said Current River Lumber Company, return and deliver the said metal material to your petitioner.

* * * * * * * * * * *

"(9) That said J. W. Byrnes, receiver, W. S. Dwinnell, and said Current River Lumber Company be ordered and directed, if deemed advisable by this court, to show cause, if any they have, why they should not return to petitioner said steel rail and metal material as set forth in said contract, said order to be returnable on a day certain to be fixed by this honorable court."

September 24, 1925, the court entered an order making the receiver, Dwinnell, and the Current River Lumber Company parties to the intervention. October 30, 1925, the receiver filed answer to intervening petition. On the same date the Current River Lumber Company filed motion to dismiss the amended petition of intervention, which the court denied. March 10, 1926, Dwinnell filed a motion to dismiss the petition of intervention on a number of grounds; the chief ones being want of equity in the bill and lack of jurisdiction of the court. March 24, 1926, the Current River Lumber Company filed answer and included therein a prayer for dismissal of the petition of intervention on the ground that the court lacked jurisdiction to hear and determine the same.

July 6, 1926, the court entered an order setting aside its former order in which it had refused to dismiss on application of the Current River Lumber Company the petition of intervention, and then granted said motion of Dwinnell to dismiss the petition of intervention. The only ground upon which the court sustained the motion, as clearly appears by the decree and by its oral opinion, was lack of jurisdiction. A part of its order is as follows:

"It is further ordered, adjudged, and decreed that the separate motions of the defendants W. S. Dwinnell and of the Current River Lumber Company to dismiss the said amended intervening petition of St. Louis-San Francisco Railway Company are sustained and the said amended intervening petition of St. Louis-San Francisco Railway Company be, and the same hereby is, dismissed for lack of jurisdiction."

The jurisdictional question is the only one involved in this appeal. What we say in this opinion relates in no way to the merits of the controversy.

The face of the petition discloses no diversity of citizenship. A citizen of Missouri, to wit, the Frisco Company, asks a decree against the Current River Lumber Company, another citizen of Missouri, to compel delivery to petitioner of certain personal property in its possession. It appears from the records of the District Court, however, that a creditors' bill was brought by the Lima Locomotive Works against the Forked Leaf White Oak Lumber Company, as hereinbefore set forth. The bill of intervention does not allege the filing of this original bill. The District Court could take judicial notice of its own records, and in so doing would have full knowledge of the original suit. Wilson v. Calculagraph Co. (C. C. A.) 153 F. 961; The Golden Gate (C. C. A.) 286 F. 105. If the Frisco Company's petition was dependent upon or ancillary to the original suit, or if...